Think about the oldest and most familiar principles of American law, property and proportional liability, in a new and surprising way, and learn to apply economic reasoning to an especially important and interesting aspect of life.
Efficient Crimes
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Do curso por Wesleyan University
Propriedade e Responsabilidade Civil: Uma Introdução ao Direito e a Economia
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Wesleyan University
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Crime and Punishment
Some externalities involve only a few uncompensated losers of rights whose costs are easily reckoned in monetary terms, so that forcing the taker to pay exactly these costs to the victims ensures both that victims will be fairly compensated and that takers will take rights only where they value the rights more than the losers do. The law calls these externalities torts, and the same principle of liability pricing extends to crimes, in which, with the same unlawful act, someone simultaneously takes the rights of many people who suffer moral costs that can't be satisfactorily measured by money. As with torts, some crimes may be efficient reallocations of rights, and the logic of liability shows that proportional punishment can, ideally, discover which crimes are or are not efficient and force all takers to compensate their victims in full for what they take.
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Richard AdelsteinProfessor
Department of Economics
Hi, everybody. Welcome back.
In the last several lectures, I've offered a lot to think about, a lot of
difficult material and a way to look at a familiar institution in a very different
way. So I thought I'd take some time to sort
of take a breath. And to deal with a series of four
frequently asked questions. That is natural questions that arise from
a analysis that I've just sketched for you.
And I'll try to offer the best answers to these questions that I can.
The first of the question is What's this business about efficient crimes?
What are efficient crimes? What do they look like?
And why don't proportional punishments deter them?
Let me offer a couple of examples of efficient crimes.
[COUGH] One of them has to do with you driving around in your car one day And as
you're driving in the car, you notice that your appendix has started to hurt a
great deal. You know a little bit about this, and you
know that this is probably appendicitis. And if it is, it means you have to get
yourself to a hospital, get your appendix taken care of in surgery pretty quickly.
Because if you don't, the appendix may burst and that will cause all sorts of
potentially very serious health problems. So you're driving in your car and you
realize that your life is now in danger because of this attack of appendicitis.
So you drive to the local hospital and you want to go into the Emergency Room.
What you need to park your car. So let's assume that you drive around
just a little bit, and the only parking space near the hostpial that you can see
is right in front of a fire hydrant. Well of course it's illegal to park.
And there's a meter maid who is standing near the parking meter.
So that you know that if you park your car there, she's going to put a ticket on
the car, and you're going to have to pay the ticket.
How much is the ticket going to be? Well, as I've suggested, the price of the
ticket then is the criminal liability price to be attached to the criminal act
of parking your car in front of the fire hydrant.
Is more or less the sum of all the costs that have had to be born by everybody, as
a result of your parking in front of the fire hydrant.
So what might those costs look like? Well, if you park in front of the fire
hydrant, there's a very, very small chance that there's going to be a fire
that will burn down the whole town. And if there is and your car is parked in
front of the fire hydrant obviously the fire engines can't get to the fire
hydrant and they can't put out the fire. And all of those houses will burn down,
and that will produce an enormous, enormous cost, on everybody.
But by the same token, it is very very unlikely.
The probability that you will actually impose those costs is very small.
It's very unlikely that there's going to be a fire at all.
So, if you park your car in front of a fire hydrant You impose a risk, an
expected cost as it were, on all the citizens whose houses and businesses are
near the hospital. And might be burned down if there were a
fire that couldn't be stopped because of your car.
If you multiply the low probability by that very, very high consequence if the
fire actually comes to pass. Then the number that results from the
probability times the cost of the fire is, let us say, $100, at least that's our
best estimate of it. And so, according to our analysis, that's
what the ticket will cost. And you know that if you park your car in
front of a fire hydrant, you're going to get the ticket and you're going to have
to pay the fine. What do you do?
Well you compare the alternatives. One of them is to park your car in front
of the fire hydrant for $100 and get your appendix fixed.
The other alternative is not to park your car, to save the $100, and drive around
until you can find a legal parking space. But that runs the risk that your appendix
will burst while you're looking for the parking space, and then you'll be in very
very serious trouble. Most people faced with a choice of this
sort would park their car in front of the fire hydrant, and if they were asked to
pay the fine at the end. They would have said, I suspect, yes,
it's not pleasant to pay the $100 fine, but it was worth it.
And if I had to do it all over again, I would do the same thing.
I would commit the crime, I would pay the fine that represents the cost that my
crimes imposed upon other people. And I'd do it gladly because I have so
much value left over. Here's the second example of how I might
do it all again. Let's raise the stakes just a little bit.
Suppose I work for a boss whom I really don't like and who treats me badly.
And so it occurs to me that I might get a good deal of satisfaction by punching him
in the nose. But then I contemplate, If I punch him in
the nose, I'm likely to have to spend 90 days the local jail.
For my assault upon him. It's a crime to punch somebody in the
nose. But I really dislike my boss, and it
would really give me a lot of pleasure to punch him in the nose.
So I do it. And sure enough, I'm caught; I'm charged
with an assault; and after a proper trial.
I'm sentenced to 90 days in the jail Because this is the jury's best estimate
of the moral cost that I've imposed by the crime itself.
So there I am sitting in jail for 90 days, as I've said it's not fun to be in
jail, but none the less each day that I sit there.
I think about the pleasure that I derived from punching my awful boss in the nose.
Now, it's the ninetieth day and I walk out of the prison and I say to myself, it
was not fun to spend those 90 days in the jail.
But it sure was great to punch my boss in the nose and if I had to do it all over
again, I think I just might do it. Then two is an efficient offense.
Because the offender has committed the offense.
Imposed the moral cause of the crime. And decided it was worth paying.
Notice that in this second case there's a direct victim to the crime.
So in addition to being subject criminal liability for the assault.
I'm also subject to a tort suit by the direct victim, my boss and that too will
almost certainly succeed. And I'll be required, in addition to
paying 90 days in jail, to pay a monetary price to the boss.
To compensate him for the physical and economic costs that he's borne as a
result of my punching him in the nose. It's possible that the addition of this
extra monetary punishment, or liability, will tip the balance so that I now say to
myself, it isn't worth it to punch him in the nose.
Because the criminal liability plus the civil liability is too much; worth more
to me than the satisfaction of punching him in the nose.
But it might not be. And if it isn't, this is an efficient
defense. It's efficient, because all of the costs,
economic and moral, are judged by the offender to be smaller than the
satisfaction that the offender derives from committing the act.
Imposing the costs, and then paying the cost in form, in the form of a liability
judgement. Okay.
One might object to this. That the examples are sort of artificial.
They're stilted. In particular, even with my punch,
they're not particularly violent crimes. Real crimes somebody might say are
typically violent crimes. Armed robberies, physical assaults,
rapes, murders, that sort of thing. How can the analysis go through in those
cases? How can there be an efficient armed
robbery or even an efficient murder? Here the appeal must be made to
preferences. Notice that preferences as much as prices
determine what people will do. Suppose I don't like tuna fish.
I really don't like tuna fish. Then even if they were giving tuna fish
away at the store, I wouldn't take any of it, because I simply don't like it.
If I really did like tuna fish, I might be willing to pay a great deal for it.
If I got a lot of pleasure of eating that can of tuna fish and the price were very
high, I still might pay that price so as to realize pleasure.
And so two people might treat that can of tuna fish quite differently.
One saying even if the price were zero I wouldn't buy it because I don't like it.
And the other saying I really do like it and I'd buy it even if the price of it
were very high. Crimes are like that.
Some people would never commit crimes. That is to say, some people would never
commit an armed robbery, some would never commit a rape, some people would never
commit a robbery. And they would never do these things even
if the price that they would have to pay for doing them is very low, and that's
because they believe this is wrong. We talked earlier about norms, and norms
operate importantly in the operation of the criminal justice system.
Most people simply don't have a preference to commit violent crimes.
Most people simply don't get a lot of pleasure out of committing violent crime.
But some people do get a lot of pleasure out of committing violent crimes and they
like the people who like the Tuna fish. The price of violent crimes is very high
but some people get a great deal of satisfaction out of committing violent
crimes. And if they do they are candidates to
commit Efficient crimes, because the value that they derive in terms of
personal satisfaction. From the crimes that they commit may well
be greater than the value of the costs that their crimes impose upon other
people. And similarly, prices affect different
people in different ways. I said that a $10,000 fine would effect a
rich person differently than it does a poor person.
And I said that imprisonment is much less like that, a five year prison term for
one person imposes a much more similar cost.
Than a fi-, to, to a five year sentence for another person, than a $10,000 fine
might impose in the two cases. But that's not exactly true about
everybody even with respect to prices like deprivation of liberty and living in
lonliness and fear. Some people do better in prison then
other people and some people would be harmed more by a stretch in prison then
other people woudl. The same sort of people who are not
likely to commit a violent crime are people who would suffer enormously if
they spend a year in prison. And not just because of difficulties of
that year, the suffering and the violence and the fear that they would experience
during that year. If somebody in ordinary life, Somebody
whose not a habitual criminal, somebody who doesn't live by criminal acts, were
actually to spend a year in jail. That person's life price, prospects would
be substantially diminished. It's not a good thing for a middle class
person. For an accountant or a school teacher or
an attorney or a university professor to have gone to jail for having committed a
crime. It's just not a good thing.
And it would be terrible for us while we were there.
But there are other people, indeed some of the same people who have preferences
for violent crime. For whom a year stretch in a prison is
not as bad as it would be for somebody whose life prospects are better.
Perhaps this person is himself a violent person and therefore somebody to be
feared rather than somebody who will experiience fear in a prison.
And many people have acculturated themselves to prison life.
They get accustomed to it. And for many of them the aspect of life
on the outside, like gangs, are brought in to the prison as well.
so if somebody who is in a position of leadership in the gang outside the prison
may still be in the same position of leadership inside the prison.
And therefore find his conditions of confinement, as it were, somewhat less
onerous then they would be under other circumstances.
All of this goes to say that there are differeent strokes for different folks.
Different people have different preferences even with respect to the
commission of crimes. And different people experience different
levels of dis-utility from equal levels of criminal liabilty, from different,
from equal levels of criminal punishment. And given all of these things, given the
existence of people who take pleasure in violence and given the.
widespread nature of opportunities for crime, there are efficient crimes all
around us, and the criminal justice system aims to distinguish them from
inefficient crimes. A second frequently asked question is
suggested by our friend Jeremy Bentham, who we met earlier in the course.
In his famous book Principles of Morals and Legislation written in 1781, Bentham
considers the question of whether or not people calculate costs and benefits.
Whether there rational in the sense that economists assume people are rational.
Who is there, he asks, that does not calculate?
Men calculate, some with less exactness, some with more but all men calculate.
I would not say that even a madman does not calculate.
So Bentham suggests a second frequently asked question about the model of
criminal liability that I've offered in the previous lecture.
Are criminals rational? Do they calculate before they act?
Economists assume that consumers are rational, that consumers in fact don't
make what we usually call impulse purchases.
Buying goods without really thinking about whether they need them or whether
there worth the price. Sometimes we buy goods habitually, but
that's because we're pretty certain that the benefits of buying the good will
exceed the price of the good so we tend not to think about it very much.
But economists assume that every important decision, at least every
important economic decision that people make is based on a calculation.
People look at the situation and see what benefits will return to them from each
course of action, what cost will be incurred to them by each course of
action. And they pick the cost of action that has
the greatest difference between benefit and cost.
This is what it means to be rational. Benthem argues that Criminals are
rational. And though, so Benthem would answer the
question on the screen, are criminals just like you and me, by saying yes,
criminals are just like you and me. This is the view that has been taken by
most modern economists who've studied the economics of crime.
Present company included. We do believe that he, that criminals are
rational. We do believe that they in fact think
about things more often than they don't. And indeed, we think that criminals are
just like you and me. Notice though, if you've studied
sociology that there's a school of sociological or criminal logical thought.
That was dominant in the middle part of the twentieth century which took a
different view of criminals. It said that criminals were deviants,
that they were ill in some way, and that they were different from people who were
not criminals. This view is that criminals are a
distinct group characterized by their propensity toward criminality.
And that people display this propensity or they don't.
And that crimes are committed overwhelimingly by those people who are
in the class of people who are potential criminals.
And not committed very much at all by those pople who are in the class of
people who are not potential criminals. The economic approach, epitomized here by
Jeremy Bentham, is not so much that criminals are just like you and me, but
that you and I are just like the criminals.
That everybody's a potential criminal and that everybody calculates.
What distinguishes people who commit crimes from people who don't commit
crimes It's not that the people who commit crimes are somehow intrinsically
criminals. Or that they are somehow unable to
control their behavior in a way that the rest of us are able to control.
It's simply a judgment on the part of the criminal that the criminal act given it's
price is worth committing. And a judgement on the part of the person
who is not a criminal, not to commit the criminal act, because the price of the
crime, is in fact, not worth paying. Of course, in the real-world some people
commit crimes without thinking about it. In much the same way that some people buy
objects in a store, on impulse, without ever thinking about them.
An archetypal crime of passion is committed by a man who unexpectedly walks
into his home and finds his wife in bed with another man.
he loses it as they say. He reaches for a gun and he shoots them
both dead. And when the crime has been committed,
and he's come back to his senses. He looks with horror at what he has done
and he explains honestly to the police that at the moment that the shooting took
place he wasn't thinking about anything. That he was so distraught, so angry and
upset by what he had seen that his ratrionale simply departed.
He was taken over by his baser instincts, he could not control this instinct, could
not, could not think about the consequences of the action.
He just acted in the heat of the moment and in the heat of the moment, two people
were dead. I believe that such people don't think
before they act. I'm persuaded that crimes of passion are
committed by people who when they commit the crime have done nothing like
calculate the consequences. And compare those consequences to the
satisfaction of the act. Some crimes do have that rational quality
to them. Indeed we sometimes think of those kinds
of crimes as the worst kinds of crimes because they're premeditated and people
have clearly given them a lot of thought. But many crimes don't have that quality.
They're crimes of passion and we tend to be more understanding of criminals of
passion Then we are of criminals of calculation.
Many of us can imagine ourselves in the same situation as that poor fellow who
shot his wife and her lover. Even if we think we might not have done
the same that he did. And our feelings of injustice, torward
what he has done, are emelurated, somewhat by the situation in which he
finds himself. I'll sympathize with him a little bit
more than we sympathize with the first-degree murderer.
But we don't sympathize with him, we punish him.
We may reduce the crime that he commits from first-degree or premeditated,
thoughtful, rational, calculated murder Down to a lesser offense, say voluntary
manslaughter or even involuntary manslaughter.
Both of which don't require an intention to actually act or kill and both of which
are punished with much lower penalties than the penalty for murder.
But although we may take our criminal of passion and convict only of manslaughter,
the lesser crime, rather then premeditated murder, the greater crime.
We don't let him go we punish him and we punish him severely, and this to despite
the fact that we're all persuaded that the threat of punishment could not
operate on him. Because he wasn't thinking at the moment
that he committed the crime. We treat not only criminals who do
calculate but criminals who don't calculate as if they all did calculate
because in fact the law has no choice but to assume that all offenders act
rationally. In full knowledge of the consequences of
their acts. And with the decision to undertake those
acts in the face of suffering the consequences of the act.
Why does the law have no choice but to assume that they do this?
Because any other assumption Would make it impossible to justify the imposition
of criminal punishment for purposes of retribution and deterrence.
If somebody has committed a crime without thinking, then self evidently that person
can't be deterred by any threat that the law might place in front of him or her.
If I'm not thinking at all about the consequences of my act I can't be
deterred by any of those consequences and therefore deterrence will not operate on
irrational offenders. But by the same token, again consider our
criminal of passion. If he hadn't thought about it.
If I he hadn't actually calculated the consequences.
If he hasn't premeditated the actual action.
Then, he might not be responsible for what he'd done at all.
Maybe it's more just or more appropriate. To think of him as somehow acting in a
trance, without any moral responsibility for what he'd done because he'd simply
blanked out. He'd stopped thinking.
He'd stopped thinking of the consequences.
He'd stopped thinking about what was right or what was wrong.
He'd stop thinking about the morality of his action.
He'd stop thinking about the dead bodies that might soon be lying in front of him,
he wasn't thinking about anything. And so we might conclude from that, since
he wasn't thinking about anything, that he didn't make the choice to commit the
crime. But if he didn't make the choice to
commit the crime, then it's difficult to see in what sense he is morally
responsible for the consequences of the act.
This would be a serious situation for the criminal law since all someone would have
to do to escape criminal punishment altogether.
Was to say I wasn't thinking at the moment that I committed the crime and
therefore I did not make a choice to do it.
I just did it unthinkingly. In such a case I can't be deterred, nor
is retribution morally defensible. So, if we're going to punish offenders,
if we're going to hold them responsible, criminally, for their acts and punish
them severely when they commit those acts.
It must be because they we believe have choice to commit those acts or not.
And that they have chosen to commit them and that therefore they bear the
responsibility of the consequences of those acts.
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